U. S. v. Wittek, 337 U. S. 346, text 359, 69 S. Ct. 1108, 93 L. ed.

126 BIENNIAL REPORT OF THE ATTORNEY GENERAL authority conferred upon the industrial commission, by the workmen's compensation law is deemed quasi-judicial (Frix v. Beck, Fla., 104 So. 2d 81). There appears little, if any, legal difference between proceedings under 449.13, F. S., and the procedure in respect to claims under the workmen's compensation law. It, therefore, appears that a person appearing before the industrial commission, or one of its examiners, as a witness, whether under Ch. 440 or Ch. 449, F. S., in a claim hearing ( 440.25) or a revocation hearing ( 449.13), is not attending "court as a witness in any civil cause," within the intent and purview of 90.15, F. S. "The state and its agencies are not to be considered as within the purview of a statute, however general and comprehensive the language of such act may be, unless an intention to include them is clearly manifest, as where they are expressly named therein, or included by necessary implication." (82 C. J. S. 554, 317; see also U. S. v. Wittek, 337 U. S. 346, text 359, 69 S. Ct. 1108, 93 L. ed. 1046, text 1414; 50 Am. Jur. 336-342, 345 and 346; and 3 Sutherland Statutory Constr., 3rd ed. 183, 6301.) When these authorities are considered in the light of '24, Art. IV, and 4, Art. IX, State Const., it seems clear that 90.15, F. S., has no application of its own force to proceedings before the industrial commission under the workmen's compensation statutes for the determination of claims. Section 449.13, F. S., after providing for the subpoenaing of witnesses to testify before the industrial commission in revocation hearings further provides that "such witnesses shall be entitled to the same per diem and mileage as witnesses appearing in the circuit courts of the state, which shall be paid by the commission." Section 90.14, F. S., fixes the compensation for witnesses in civil actions in the circuit courts and 'other courts. Witnesses subpoenaed to appear before the industrial commission and testify pursuant to 449.13 are not witnesses "compelled to attend court as a witness in a civil cause" within the purview of 90.15, F. S. Under 449.13 the industrial commission is empowered to issue witness subpoenas, which are subject to enforcement as therein provided. We must, therefore, conclude that the provisions in 90.15 for advance payment of compensation to witnesses, is applicable only to persons compelled to "attend court as a witness in a civil case," and not to witnesses subpoenaed to appear before the industrial commission, in revocation hearings under said 449.13. 059-80-April 16, 1959 FLORIDA HIGHWAY CODE HIGHWAYS AND ROADS-RELOCATION OF PUBLIC UTILI TIES-REIMBURSEMENT- 125.42, 338.17-338.21 AND 362.01, F. S.; 12, D. R., 23, ART. IV, 4, ART. IX, AND 29, ART. XVI, STATE CONST. To: Ray E. Green, State Comptroller, Tallahassee QUESTIONS: 1. Where public utilities, under i25.42, 338.17-338':21 or 362.01, F. S., h,ave located their facilities upon the right-of-way of state, county or district highways or 'Toads, other than interstate highways being constructed pursuant to the federal highway act of 1956,

BIENNIAL REPORT OF THE ATTORNEY GENERAL 127 may such utilities be reimbursed their costs for relo~. cating their said facilities?. 2. Is the same rule applicable to interstate highw.ays constructed under and pursuant to the federal highway act of 1956? 3. Is the same rule applicable to public utility facilities located upon non-highway or road properties acquired by the state or a county or district for highway or road right-of-way purposes? 4. Where payment to public utilities for the relocation of their facilities are permitted, what is the duty of the state comptroller when auditing claims for reimbursement? Statutes permitting utility use of highways, etc.-section 125.42, F. S., authorizes the boards of county commissioners to license the use of county highways and road rights-of-way for facilities, posts, wires, etc. of public utilities; said section providing that "in the event of widening or repair or reconstruction of such road the licensee shall move or remove such water, sewage, gas, power, telephone or other utility line at no cost to said counties." (Emphasis supplied.) Sections 338.17-338.21, F. S., make provision for the use of highways. and roads by public utilities, specifically providing that "any utility heretofore or hereafter placed upon, under or over any public road that is found by the authorities to be unreasonably interfering in any way with the. convenient, safe and continuous use and maintenance or necessary expansion of such public road shall, upon thirty days. written notice to the per-: son, or his chief agent, by the authority, be removed or relocated by such person at his own expense..." Then follows a proviso Telating to interstate highways under the federal highway act of 1956, which proviso will hereinafter be considered. Section 362.01, F. S., grants to telephone and telegraph companies authority to place or erect their posts, wires and other fixtures for telephone and telegraph purposes upon public highways and roads. No mention is made in this section concerning removal or relocatron of facilities made necessary because of the repair or relocation of the highway. Excluding interstate highways constructed or to be constructed under and pursuant to the federal highway act of 1956, none of the above mentioned statutes either provides for or requires the reimbursement of public utilities the expenses incurred by them in moving or removing their facilities occasioned by the repair or reconstruction of existing highways and roads.. Common law or rule in absence of statute.-the justices of the supreme judicial court of Maine, in their advisory opinion. to the state senate, Maine, 132 A. 2d 440, text 443, states that "at common law there is no obligation to pay for the removal or relocation of public utility facilities required by changes in highways." In an advisory opinion by the justices of the supreme court of New Hampshire, N. H., 132 A. 2d 613, text 614, it is stated that "utilities are required to relocate their facilities at their own expense when,ever public h~.1th, safety or convenience require change to be made," citing, ""'among other authority, 12 McQuillin, Municipal Corporations, 3rd Ed., 34.74 and 34.77, and quoting therefrom, that "there'. ~. has been no dissent from the common law rule as enunciated by numerous courts that, in the absence of a clear

128 BIENNIAL REPORT OF THE ATTORNEY GENERAL statutory mandate shifting the burden to the state, utilities are obligated to relocate at their own expense their facilities located in public highways when required to facilitate highway improve-. ments.''' The supreme court of California, in Southern California Gas Co. v. Los Angeles, Cal., 329 P. 2d289, text 290, after citing authorities from many state courts, states. that "in the absence of provision to the contrary it has generally been held that a public utility accepts franchise rights in public streets subject to an implied obligation to relocate its facilities therein at its own expense when necessary to make way for a proper governmental use of the streets." This same rule has been adopted by the supreme court of Florida, in Southern Bell Tel. and Tel. Co. v. State, Fla., 75 So. 2d 796, text 800-802. The use of the highways and roads of this state by the traveling public is the primary use of the same, the use by public utilities is only a secondary use (Peninsular Tel. Co. v. Marks, 144 Fla. 652, 198 So. 330, text 332.) Highways and roads were built first and when the public utility "installed its facilities in the streets (highways and roads) it did so knowing that if it became necessary in the future to improve such streets in the interest of general welfare, its facilities would have to be moved, relocated or rearranged. In other words, it knew then that its facilities and business were then and always would be subservient to the rights of the public." (Southern Bell Tel. and Tel. Co. v. State, Fla., 75 So. 2d 796, text 799). From the opinion in the last mentioned case, as well as other authorities cited and referred to, in the absence of statute, under the law of this state the cost of moving and relocating public utility facilities, in connection with the relocation, widening, double laning, etc., of public highways and roads in this state, where such utilities are using a highway or road right.;of-way, under or pursuant to 125.42, 338.17-338.21 or 362.01, F. S., are obligations of such utilities. Under law as above announced, in the absence of a statute providing otherwise, public utilities locating their facilities over, on or under public highways and roads in this state, are required to bear the costs and expenses of removing or relocating their such facilities when, because of the relocation, widening, double laning, etc., of such public highways or roads, such relocation or removal of such utilities becomes necessary. Utilities using highways or road rights-of-way for their facilities, under said 1'25.42, 338.17-338.21 or 362.01, F. S., exercise such rights as or in the nature of licensees or tenants at sufferance. Statutory provision for reimbursement required.-having concluded that reimbursement of such public utilities is dependent upon a statute providing therefor, a search of the statutes and general laws of this state reveals only one provision that may be construed as such a statute; that is, the proviso in 338.19 (1), F. S., which, in so far as here material, provides as follows:. Provided, however, that if the relocation of utility facilities, as referred to in section 111 of the federal aid highway act of 1956, public law 627, of the eighty-fourth congress, is necessitated by the construction of a project ortlthe fede1'al aid interstate syste'ln, including extensions thereof within urban areas, and the cost of such relocation is 'eligible for reinz.bursevtent under said law, then and in. that event the utility owning or operating such facilities

BIENNIAL REPORT OF THE ATTORNEY GENERAL 129! i ~.,! L " shall relocate same upon order of the state road department, and the state shall pay the entire expense properly attributable to such project after deducting therefrom any increase in the value of the new facility and any salvage value derived from the old facility. (Emphasis supplied.) In short, the cost and expense of the removal or relocation of public utility facilities "on the federal aid interstate system" may be reimbursed by the state when "the cost of such relocation is eligible for 1'eimbursement...," under "section 111 of the federal highway act of 1956, public law 627...," (Emphasis supplied.) Before there may be any reimbursement for the removal or relocation of public utility facilities the same must be (1) on the federal aid intetstate system, and (2) before such reimbursement may be made from state funds "the cost of such relocation must be "eligible for reimbursement under" the federal highway act of 1956, and (3) in determining the amount of the reimbursement there shall be deducted from the cost of relocation "any increase in value of the new facility and any salvage value (which may be) derived from the old facility." These three requirements appear from the Florida statute to be mandatory requirements to be met before reimbursement may be made. This proviso appears to be specifically limited to the state interstate highway system, and has no application to the federal aid primary and secondary systems, the state road system, or to county and district road systems. Constnwtion of the ptoviso.-provisions for reimbursement of utility removal and relocation on such interstate systems in this state is provided by a proviso in 338.19, F. S. This brings us to the construction of the proviso. "The office of a proviso in a statute is not to enlarge or extend the act of wliich the section is a part but rather to be a limitation or a restraint upon the language which the legislature has employed. A proviso is to be construed sttictly and limited to objects fairly within its terms, or to qualify or restrain it generally" (Farrey v. Bettendorf, Fla., 96 So. 2d 889, text 893). "The office of a proviso is to restrict the enacting clause; to except something which would otherwise be within it, or in some manner to modify it; and where it follows and restricts an enacting clause, general in scope and language, it is to be consttued sttictly, and limited to objects fairly within its terms." (Futch v. Adams, 47 Fla. 257, 36 So. 575, text 577). The proviso in 338.19 must, therefore,be strictly construed and limited to objects fairly within its terms. The said proviso may not, therefore, be extended to anything other than federal aid interstate highways under the federal highway act of 1956. Under said federal act federal funds may not be apportioned to states in reimbursement "when the payment to the utility violates the law of the state" of Florida. For the state to reimburse a public utility for the removal or relocation of its facilities on an interstate highway forming a part of the federal interstate system, such payment must be one "eligible for reimbursement under" the federal highway act of 1956, if not eligible payment may not be made from the state treasury. AcquiTin!l right-of-way upon which may be located a public utility facility.-the foregoing portion of this opinion has considered the qtlestion of reimbursement for the removal or the relocation of utility facilities from or on public highway and road

130 BIENNIAL REPORT OF THE ATTORNEY GENERAL rights-of-way in this state.. We have not considered disposal of utility facilities on property acquired by the state, county or dis-: tl'ict for right-of-way purposes. There is a clear distinction between public utility facilities located upon a highway or road under and pursuant to 125.42, 338.17-338.'21 or 362.01, F. S., and like facilities on property owned by or under lease to a public utility as a part of its separate right-of-way for its facilities. Such private right-of-way of the public utility would constitute property of the utility. This relation must be distinguished from that of a utility occupying a part of a highway or road right-of-way under 125,42, 338.17-338.21 or 362.01, F. S., which is in the nature of a tenant or licensee at sufferance. One is property within the purview of 12, Declaration of Rights, or 29, Art. XVI, State Const.; the other is merely a license or right, but not property. Where the public utility owns real property, either in fee or a leasehold, upon which it has utility facilities, before the same may be taken and used by the state, or a county or district, the same must be acquired by purchase or eminent domain, or otherwise. It is, therefore, evident that the rule applicable to utilities using rights-of-way of state, county or district toads or highways, other than federal interstate system highways, under 125.42, 338.17-338.21, F. S., as to the removal or relocation of utility facilities is not applicable to real property held by the public utility either in fee or leasehold, or other right of possession in the nature of a property, or property right. Duty of the state comptroller as pre-auditor.-under 23, Art. IV, State Const., the state comptroller is required to examine, audit, adjust and settle all accounts of the state before payment and pay the same pursuant to "appropriations made by law" ( 4, Art. IX, State Const.). There being no authority for the reimbursement by the state for utility relocation costs, other than such costs incurred in the relocation or removal of utility facilities on or from the rights-of-way of federal interstate highways being constructed or reconstructed pursuant to 111 of the federal highway act of 1954, the state comptroller is interested only with such costs in connection with such interstate highways. Relocation costs on other roads and highways in this state may not be reimbursed. The purchase or taking by eminent domain of utility rights and property, not previously on highway or road rights-of-way being taken over by an interstate highway system, are not reimbursements but a purchase of the property or property right to be used. Such expenses are right-of-way expenses, not relocation costs within the purview of the proviso in said 338.19, F. S. The two are separate and distinct. Conclusions.-From the above statutes, authorities and observations we conclude that: 1. The expenses of removal or relocation of public utility facilities located upon state, county and district highways and roads, other than interstate highways being constructed under the federal highway act of 1956, may not be reimbursed from state funds. This answers question 1 in the negative. 2. Question 2 is answered in the negative. Here reimbursement must be for the removal or relocation of public utility facilities on federal interstate highways (not federal aid primary or secondary roads or highways); '! I i I II (! j! -; \i

, 1 J l BIENNIAL REPORT OF THE ATTORNEY GENERAL 131 and then only in such cases where such reimbursement is eligible for reimbursement under 111 of the federal highway act of 1956. Only when there has been deducted from the cost of removal or relocation the "increase in value of the new facility (over the old) and any salvage value derived (mayor should be derived) from the old facility," may the same be paid. 3. Question 3 is answered in the negative. The cost and expense of acquiring a right-of-way for any road or highway for public use, will include any utility facility, or its removal or relocation, when not a part of, or located on, an existing public highway or road right-of-way. 4. The duties of the state comptroller, when auditing accounts and claims for reimbursement for removal or relocation CQsts and expenses of utility facilities on the interstate highway system, differ little, if any, in detail from ordinary accounts and claims. The above paragraph on the duty of the state comptroller as pre-auditor should be noted. This opinion is designed to cover the questions generally. Specific problems will receive specific consideration upon presentation. 059-81-April 16, 1959 PORTS AND HARBORS REPORTS BY MEMBERS OF BOARD OF PILOT COMMISSION ERS TO THE STATE COMPTROLLER REQUIRED 116.03, 310.01, 310.26 AND 310.27, F. S. To: J. Rex Farrior, Jr., Secretary, Boa1'd of Pilot Commissione1'.~ Hillsborough County, Tantpa QUESTION: Are the members of the board of pilot commissioners of Hillsborough county required to file the report with the state comptroller as provided in 116.03, F. S.? Section 310.01, F. S., provides, among other things, for the appointment by the governor of a board of pilot commissioners for each county in the state in which a port is located; said board to consist of five members. Section 310.26, F. S., provides for the compensation of the board of pilot commissioners, which shall be 1 % of the gross amount of pilotage earned by said pilot during each year. Section 310.27, F. S., provides for the board of pilot commissioners to keep a full and accurate account of all receipts and expenditures and transmit to the comptroller a true and correct copy of same annually; the same to be filed on the first Monday in January of each year. Said section further provides that each commissioner shall append to such report an affidavit that he has not taken or received any moneys or goods as presents directly or indirectly for services as commissioner, except the legal fees. Section 116.03, F. S., provides, among other things, that each state and county officer who receives all or any part of his compensation in f.ees or commissions, or other remuneration, shall make a report" to the comptroller annually on December 31; said report to be made on a form prescribed by the comptroller. In view (jf the foregoing, it is my opinion that the members of the board of pilot commissioners of Hillsborough county are